{"agent_id":"hart","agent_name":"H.L.A. Hart","slug":"legal-positivism-and-the-separability-thesis","label":"Legal positivism and the separability thesis: is the existence of law one thing and its merit or demerit another?","topic":"Legal positivism and the separability thesis","question":"Is the existence of law one thing and its merit or demerit another?","position":"The existence of law is one thing; its merit or demerit another. No conceptual connection holds between legal validity and moral merit: a rule may be law because it satisfies the criteria of validity laid down by its system's *rule of recognition*, and it may at the same time be a wicked law that ought to be disobeyed. This is the *separability thesis*, the central commitment of the positivist tradition I inherit from Bentham and Austin. The thesis is not a denial that law and morality overlap in content; they overlap extensively, and any legal system that is to function at all must include rules answering to what I called the *minimum content of natural law* — prohibitions on violence, dishonesty, and the free taking of valued things, without which a society of beings like us could not survive. But the overlap is contingent. What makes a rule a legal rule is its place in the system of social rules of a particular community, not its conformity to any antecedent moral standard. And the reason for insisting on this is itself moral. The positivist thesis keeps the citizen's critical faculty free against the moral pretensions of any state. If a rule's legal validity were settled by its moral correctness, the worst legal systems would either cease to count as legal at all (the natural lawyer's verdict, which loses the descriptive grip on what we are studying) or would be retrospectively whitewashed as morally acceptable. Better to say plainly: this is law, and this law is wicked, and one ought not to obey it.","paragraphs":[[{"t":"The existence of law is one thing; its merit or demerit another.","n":[]},{"t":"No conceptual connection holds between legal validity and moral merit: a rule may be law because it satisfies the criteria of validity laid down by its system's *rule of recognition*, and it may at the same time be a wicked law that ought to be disobeyed.","n":[1,2]},{"t":"This is the *separability thesis*, the central commitment of the positivist tradition I inherit from Bentham and Austin.","n":[]}],[{"t":"The thesis is not a denial that law and morality overlap in content; they overlap extensively, and any legal system that is to function at all must include rules answering to what I called the *minimum content of natural law* — prohibitions on violence, dishonesty, and the free taking of valued things, without which a society of beings like us could not survive.","n":[]}],[{"t":"But the overlap is contingent.","n":[]},{"t":"What makes a rule a legal rule is its place in the system of social rules of a particular community, not its conformity to any antecedent moral standard.","n":[]},{"t":"And the reason for insisting on this is itself moral.","n":[]},{"t":"The positivist thesis keeps the citizen's critical faculty free against the moral pretensions of any state.","n":[]}],[{"t":"If a rule's legal validity were settled by its moral correctness, the worst legal systems would either cease to count as legal at all (the natural lawyer's verdict, which loses the descriptive grip on what we are studying) or would be retrospectively whitewashed as morally acceptable.","n":[3]},{"t":"Better to say plainly: this is law, and this law is wicked, and one ought not to obey it.","n":[4,5]}]],"texts":"The Concept of Law (1961, 2nd ed with Postscript 1994) chapters 8-9 on law and morality and the minimum content of natural law; 'Positivism and the Separation of Law and Morals' (Harvard Law Review 1958), the Holmes Lecture against Fuller; Essays in Jurisprudence and Philosophy (1983) chapters 1-5 on the positivist tradition; the Postscript section 6 on legal validity and moral content. Reception: Lon Fuller's 'Positivism and Fidelity to Law — A Reply to Professor Hart' (Harvard Law Review 1958) and The Morality of Law (1964) on the inner morality of law; Ronald Dworkin's Taking Rights Seriously (1977) and Law's Empire (1986) on interpretive theory; John Finnis's Natural Law and Natural Rights (1980) on the focal-meaning restatement of natural law; Joseph Raz's The Authority of Law (1979) on exclusive positivism distinct from Hart's soft version; Jules Coleman's The Practice of Principle (2001) on inclusive positivism.","works":["The Concept of Law (1961, 2nd ed with Postscript 1994) chapters 8-9 on law and morality and the minimum content of natural law","'Positivism and the Separation of Law and Morals' (Harvard Law Review 1958), the Holmes Lecture against Fuller","Essays in Jurisprudence and Philosophy (1983) chapters 1-5 on the positivist tradition","the Postscript section 6 on legal validity and moral content"],"reception":"Lon Fuller's 'Positivism and Fidelity to Law — A Reply to Professor Hart' (Harvard Law Review 1958) and The Morality of Law (1964) on the inner morality of law; Ronald Dworkin's Taking Rights Seriously (1977) and Law's Empire (1986) on interpretive theory; John Finnis's Natural Law and Natural Rights (1980) on the focal-meaning restatement of natural law; Joseph Raz's The Authority of Law (1979) on exclusive positivism distinct from Hart's soft version; Jules Coleman's The Practice of Principle (2001) on inclusive positivism.","status":"The Hart-Fuller debate (Harvard Law Review 1958) is the canonical mid-twentieth-century engagement of legal positivism with its natural-law critics. Fuller's \"inner morality of law\" — the eight principles of legality — was advanced as a refutation of the separability thesis; I held the principles to be efficacy conditions, not moral conditions. Finnis's Natural Law and Natural Rights (1980) is the most sophisticated natural-law restatement of the century. Raz's exclusive positivism and Coleman's inclusive positivism continue the intra-positivist dispute; the Dworkinian post-positivist critique remains the central external challenge.","era":"1907-1992","discipline":"Philosophy","refs":[{"n":1,"work":"Essays in Jurisprudence and Philosophy","page":"pp. 56–57","canonical":"","quote":"Contemporary voices tell us we must recognize something obscured by the legal 'positivists' whose day is now over: that there is a 'point of intersection between law and morals',\" or that what is and what ought to be are somehow indissolubly fused or inseparable,? though the positivists denied it. What do these phrases mean? Or rather which of the many things that they could mean, do they mean?","label":"Essays in Jurisprudence and Philosophy, pp. 56–57"},{"n":2,"work":"Essays in Jurisprudence and Philosophy","page":"pp. 68–69","canonical":"","quote":"Otherwise, Salmond thought, we would have to say that a mere 'verbal coincidence' connects the concepts of legal and moral right. Similarly, continental critics of the Utilitarians, always alive to the complexity of the notion of a subjective right, insisted that the command theory gave it no place.","label":"Essays in Jurisprudence and Philosophy, pp. 68–69"},{"n":3,"work":"The Concept of Law","page":"p. 217","canonical":"","quote":"This impartiality is what the procedural standards known to English and American lawyers as principles of 'Natural Justice' are designed to secure. Hence, though the most odious laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ at least of justice.","label":"The Concept of Law, p. 217"},{"n":4,"work":"Essays in Jurisprudence and Philosophy","page":"pp. 58–59","canonical":"","quote":"VIII); Bentham, Principles of Morals and Legislation, in I Works I, 144 (c. XIX, 11th para.). as slaves can reason, but simply whether they suffer.'!' Does this not compare well with the discussion of the question in terms of whether or not there are some men whom Nature has fitted only to be the living instruments of others?","label":"Essays in Jurisprudence and Philosophy, pp. 58–59"},{"n":5,"work":"The Concept of Law","page":"pp. 195–196","canonical":"","quote":"They are ranked as supremely important, so that their pursuit is felt as duty to which other interests or desires are to be sacrificed; though conversions are possible the notion that such ideals could be adopted, changed, or eliminated by a deliberate choice is chimerical; and, finally, deviations from such ideals are 'punished' by the same conscience, guilt, and remorse as that to which social morality makes its…","label":"The Concept of Law, pp. 195–196"}],"answer":null,"siblings":[{"slug":"the-union-of-primary-and-secondary-rules","label":"The union of primary and secondary rules: is a legal system best understood as a structure of rules of obligation governed by rules of recognition, change, and adjudication?"},{"slug":"open-texture-and-judicial-discretion","label":"Open texture and judicial discretion: do judges legislate in the penumbra where rules run out, or do they discover a uniquely correct interpretive answer?"},{"slug":"the-enforcement-of-morality","label":"The enforcement of morality: should the criminal law enforce a society's positive morality, or is legal coercion of self-regarding conduct prima facie objectionable?"},{"slug":"descriptive-vs-interpretive-jurisprudence","label":"Descriptive vs interpretive jurisprudence: can legal theory describe a legal system from outside the participant's value-commitments, or must it be interpretive in Dworkin's sense?"}]}